Will mining company be held accountable for damage to West Coast?

Judgment is pending in a High Court review application that lawyers and environmentalists believe will have a crucial bearing on the future environmental management of South Africa’s mining industry – particularly within the one kilometre protected coastal zone.

The outcome is also likely to influence whether and when a criminal prosecution will be instituted against the applicant in the review application: Australian-owned mining company Mineral Sands Resources (MSR) that extracts heavy mineral sands like zircon, ilmenite, rutile, magnetite and garnet at its Tormin mine, on the West Coast.

The company has raised the ire of some local residents, environmentalists and lawyers for alleged environmental malpractices in its operations at the mine. It is these practices that are currently the subject of a criminal investigation that in turn sparked its review application. Opposed by government environmental authorities, the application was heard by Judge Owen Rogers over four days in the Western Cape High Court earlier this week (20-23 Feb).

It was somewhat ironic that the first day of the Tormin mineral sands mine review application hearing in the High Court building in Keerom Street, Cape Town was set down for Court 4. This court is usually reserved for criminal cases, and the preceding case was perhaps gang-related or something similar with so many accused that they’d spilled over from the dock onto the bench usually used by attorneys, where their places were designated by large numbers written on sheets of paper.

The numbers were still in place, stuck on the back of the bench, when the Tormin case got underway last Monday morning. They presented an opportunity not lost on veteran advocate Peter Hodes SC, appearing for MSR, when he saw lawyers and senior officials from the government’s team taking their places. Renowned for his sharp wit and good humour, Hodes quipped: “These tree-huggers are in the right place, in the dock. We miners call them tree-huggers.”

Hodes, who has more than 50 years’ legal experience at the Cape Bar, was obviously joking, but at a literal level, his dendrological metaphor was particularly inappropriate because very few trees featured in this application. Rather, the focus was on highly destructive, if highly lucrative, mining taking place within an area that, while devoid of trees, is nevertheless of global environmental importance.

The Tormin mine, located on the coast some 400km from Cape Town near Lutzville, is situated within the arid Succulent Karoo biome, one of seven in South Africa. (A biome is a large community of plants and animals occupying a distinct geographical region.) Virtually treeless, the Succulent Karoo nevertheless hosts a botanical diversity unparalleled by any other similarly arid region on Earth, and it includes about one third of all the world’s succulents among its more than 6,300 higher plant species. Even more significant is that nearly 40 percent of these plants are endemic (occurring naturally only here), and it is so important in biological terms that it has been designated as a global biodiversity hotspot.

Environmental organisation Conservation International describes the Succulent Karoo as “a secret land of weird and wonderful succulent plants (the richest on the planet), among which run an eclectic mix of insects, reptiles, scorpions and arachnids, all adapted to the arid conditions of the region, where moisture is largely gained from dense sea fogs”.

Unfortunately, less than three percent of this unique biome is conserved in 10 statutory reserves, and its rich biodiversity and magnificently stark natural landscapes are under severe threat from a number of sources, of which mining is one of the most serious. Equally unfortunately, because much of the Succulent Karoo appears to the untrained eye to be little more than a vast barren landscape, environmental degradation here is sometimes dismissed as insignificant, inconsequential or unimportant.

Nothing is further from the truth.

So when it comes to mining within such significant landscapes, who are – or should be – the environmental guardians with responsibility for safeguarding the unique ecosystems at risk here? Until December 2014, they were primarily the nine provincial environment departments and their Green Scorpions: inspectors with compliance monitoring and enforcement powers designated under the National Environmental Management Act (NEMA).

Then, in that month, responsibility ostensibly changed hands with the introduction of the government’s new One Environmental System, designed to reduce bureaucracy and improve efficiencies in managing environmental components of the mining industry. The new system required the Department of Mineral Resources to establish its own force of Mineral Resource Inspectors (MRIs) with the same powers as the Green Scorpions but with exclusive jurisdiction for compliance monitoring and enforcement of environmental authorisations for all prospecting and mining operations.

Legislation was amended to give effect to this system.

So it should have been a slam-dunk for MSR when the Green Scorpions, acting on complaints, came knocking to conduct an inspection to search for evidence of environmental transgressions at Tormin ahead of a possible prosecution - “No, sorry, you can’t come in, you no longer have any jurisdiction in mining areas.” But a Vredendal magistrate had issued a warrant for their search-and–seizure, and the Green Scorpions did enter the mine premises and collect evidence.

In its review application, the mining company is seeking to have the warrant set aside, the evidence destroyed, and a declaratory order issued to the effect that the Green Scorpions no longer have a mandate in the mining industry, save for one very limited area.

Johan de Waal, junior counsel to Hodes, told the court that after December 2014, responsibility for compliance monitoring and enforcement at mines had become the exclusive mandate of the Minister of Mineral Resources. Also, any complaints about such monitoring and enforcement had to be dealt with, initially at least, by her department – “It’s common cause that (this) process wasn’t followed,” he said.

But lawyers being what they are, the respondent’s legal team found a number of apparent anomalies and lacunae and omissions in the amended legislation that governs the One Environmental System. One interpretation of some of these apparent aberrations suggests the drafters of the new legislation might have realised that, because of the proliferation of mining throughout the country, the DMR would be overwhelmed with complaints and/or wouldn’t have the resources to do their new monitoring job effectively. So the drafters quietly left the door open for the Green Scorpions’ continued involvement. DMR’s tardiness in getting its MRI inspectorate up and running tends to support such a view.

A less charitable suggestion, however, is that the legal drafters didn’t quite do their job properly, resulting in alternative interpretations of parts of the legislation that, at face value, appear equally valid.

Either way, advocate Ron Paschke for the respondents in the review application (the national Department of Environmental Affairs and the Western Cape Department of Environmental Affairs and Development Planning) argued that, even under the new One Environmental System, there were still three levels or layers of overlapping authority relating to environmental authorisations for mining:

– the national Green Scorpions, who could monitor compliance with, and enforce all aspects of, mining authorisations everywhere in South Africa;

– provincial Green Scorpions, who could do the same within their respective provinces, except in respect of the actual extraction and primary processing operations of mining; and

– DMR’s Mineral Resource Inspectors, who could only deal with environmental authorisations relating to extraction and primary processing operations and nothing else – not even waste dumps on mining sites, for example.

“The result of all this is a system of concurrent powers,” Paschke argued.

De Waal agreed that jurisdiction for “listed activities” – those requiring environmental authorisation – under NEMA was conferred on different authorities, but argued that there were no overlapping powers. In particular, he noted that mining areas were an exclusive national competency where provincial environmental authorities could never interfere, and that the role of the national DEA minister was restricted to dealing with complaints about how the DMR inspectors were doing their jobs.

Judge Rogers has a reputation for prompt delivery of judgments but, not surprisingly given the complexities involved, he suggested that this case could take him a little longer than usual: “I’ll need to take time. Thanks to everyone for trying to make this clear.”

In the meantime, the fog will continue rolling in from the icy Atlantic Ocean over the beautiful mineral-laden beaches of the West Coast, and bring vital moisture further inland to a myriad variety of succulent plants and intriguing creatures that share this arid habitat and occur nowhere else on Earth.

Those who love and treasure this unique landscape are desperately hoping for an outcome to the court case that will help enforce sound environmental management practices and keep adverse impacts to a bare minimum, even where highly destructive activities like mining are involved.